Rules of Professional Conduct Related Ethical Opinions

1.7 Conflict of Interest: Current Clients

85-05: Conflicts; Advertising

Attorney may not sell insurance policies or publicly promote an “open panel” pre-paid group legal insurance program where such activities would render the program a vehicle for the promotion of his own legal services.

86-08: Conflicts

86-13: Conflicts, Confidentiality; Attorney/Client

Attorney may accept employment as both the guardian ad litem and attorney for a minor child in dependency proceedings provided no conflict of interest arises. Attorney representing minor child should follow the wishes of the client as much as possible. Guardian ad litem cannot waive attorney/client privilege.

87-07: Conflicts; Solicitation; Pro Bono

Permissible to solicit pro bono employment from prospective indigent client, provided there is no motive for pecuniary gain. Attorney may pay costs of litigation, or request client to pay as much as possible, or receive payment from a third party.

87-13: Professional Independence; Conflicts

87-15: Conflicts

Two attorneys employed by the same law firm separately representing a plaintiff client and a defendant client on appeal in unrelated action. Because of similar fact situation, one client will necessarily prevail and the other lose.

87-20: Conflicts

A lawyer or her partners may not ethically act as a special prosecutor for a city, or represent City Court judges in special actions or civil matters while simultaneously handling criminal defense cases in city court of the same city.

87-21: Conflicts

A lawyer who has a public defender contract may not ethically serve simultaneously as a judge pro tempore in Superior Court on the criminal bench, nor the juvenile bench. The lawyer may serve simultaneously as a judge pro tempore on the civil bench or domestic relations bench. The lawyers partner may ethically serve as a judge pro tempore even in criminal and juvenile matters.

88-03: Diligence; Conflict of Interest

88-06: Conflict of Interest; Diligence

Circumstances in which a lawyer may disburse settlement proceeds obtained on behalf of a client against which a third party is asserting a lien. Obligation of lawyer to initiate formal proceedings to have the validity if the lien determined.

89-04: Confidentiality of Information; Conflict of Interest; Successive Government and Private Employment

Where a lawyer formerly associated with County Attorney's office takes a public defender position, the lawyer may not represent a defendant in connection with a matter about which the lawyer obtained confidential information relating to the government's representation of the client; consent is also required in all cases in which the lawyer actually represented the government, by appearance or otherwise, and now seeks to represent an individual in the same or substantially related matter; the government's consent is likewise required where the lawyer participated personally or substantially in the prosecution of that matter.

89-10: Confidentiality of Information; Conflict of Interest; Professional Independence of Lawyer

It is ethically proper for a lawyer or law firm to accept credit cards for the payment of legal fees and retainers. The acceptance of credit cards does not infringe upon the confidential nature of communications between an attorney and a client, nor does it represent a conflict of interest or an interference with the attorney's professional independence. The lawyer and the client must enter into an agreement as to which party will bear the lender’s discount; the client must fully understand the terms of this agreement.

90-12: Confidentiality of Information; Conflict of Interest; Client Under Disability

Ethical obligations of attorney determine whether client has the capacity to act adequately in her own interest. In so doing attorney may disclose confidential information to diagnostician; no conflict with two other clients of attorney's firm who may have manipulated client for their personal benefit.

90-18: Conflict of Interest; Professional Independence of Lawyer

Contractual provisions between Department of Economic Security and County Attorney who provides representation on child support and paternity matters to the DES may violate his professional duty to exercise independent judgment, depending on whether the DES is his client.

Member of both Arizona and Navajo Nation Bars not subject to disciplinary action by State Bar if he complies with Navajo Nation's ethical rules and court directives during representative appointment by Navajo Nation.

92-06: Conflict of Interest; Criminal Defense Practice

Ethical propriety of public defender's continued representation of a client, where the client's defense is to inculpate a co-defendant who the Public Defender's Office was appointed to represent in the early stages of the same case and also in another proceeding.

92-07: Conflict of Interest; Criminal Defense Practice

Committee discusses the propriety of a public defender's continued representation of a client where the Public Defender's Office is currently representing one person and formerly represented three others who have now been listed as witnesses for the State in the client's criminal case.

92-08: Sale or Lease of a Law Practice; Goodwill of a Law Practice (Invalidated by Op. 06-01)

Sole practitioner proposes to turn over his law practice to a law firm while he goes on a one-year leave of absence. Discussion of whether a law practice has a salable goodwill. (Invalidated by Op. 06-01)

93-07: Conflicts

93-09: Conflicts; Imputed Disqualification

Case-by-case analysis required for lawyer-legislator conflict and disqualification issues arising from lobbying activities. *This opinion was adopted by the Board of Governors of the State Bar in place of the formal opinion by the State Bar Committee on the Rules of Professional Conduct.

93-13: Notice of Change of Judge

94-03: Insurance; Representation

An attorney retained by an insurance company to represent an insured owes primary allegiance to the insured. That allegiance requires the client's consent before the attorney may file a motion for summary judgment in a third party matter that would benefit the insurance company but could be disadvantageous to the insured.

Private practitioner offered a contract to represent a county commission may not agree to terms that would require the attorney to seek prior approval of the board of supervisors before proceeding beyond filing an answer. Opinion also discusses whether it is an ethical violation to offer such a contract.

94-13: Former Client; Expert Witness; Disclosures to Tribunal

The inquiry pertains to ethical considerations when a lawyer previously represented a court appointed mental health professional expert witness several years ago in an unrelated matter. The Opinion concluded that the lawyer: 1) is not required to disclose the prior representation absent some showing that the former relationship predisposes the expert in some unusual way to favor the expert's former attorney; and 2) need not withdraw from the present representation unless there is some unusual bias on the expert's part or the lawyer is restricted in cross-examining the expert due to the prior representation.

96-01: Mediation; Divorce

This opinion addresses three issues with respect to attorneys who function as mediators for non-client parties as follows: (1) ER 2.2 does not apply to the attorney-mediator who acts exclusively as a neutral for non-clients during the mediation process; (2) ER 2.2 does not apply to the attorney-mediator who drafts a non-binding memorandum of understanding if full disclosure is made to the participants; and (3) the Ethics Committee could not reach a consensus as to whether or not attorney-mediators may prepare pleadings for the mediation participants. [ERs 1.2, 1.7, 1.8, 2.2, 3.1, 3.3, 8.4]

A public defender must withdraw from representation of a criminal defendant who has a "colorable" claim of ineffective assistance of counsel against another member of the public defender's office. The timing of the withdrawal will depend upon the facts of each individual case. [ERs 1.7, 1.10. 1.16]

This opinion discusses the conflict of interest issues and fee issues when a law firm initially represents both a driver and passenger in a personal injury case against another driver and eventually the firm refers out the passenger for separate representation. There is a non-waivable conflict if the firm continues to represent the driver, yet has an interest in recovering a portion of the fees retrieved by the passenger. [ERs 1.5, 1.7, 1.8, 1.9, 1.16]

There are significant potential conflicts in an attorney referring a legal client to a chiropractic clinic in which the lawyer owns an interest such that the Committee discourages such arrangements. [ERs 1.7, 1.8, 5.4]

97-01: Insurance Representation; Corporate Representation; Firm Name

Lawyers employed full-time as salaried in-house insurance company lawyers should not hold themselves out as a separate law firm under one or more of their surnames because to do so misrepresents their insurance company affiliation in violation of ER 7.5, as well as presenting other possible ethical problems. [ERs 1.7, 1.8, 2.1, 7.5)

97-02: Personal Injury; Settlements; Creditors of Client

This opinion addresses several ethical issues regarding a lawyer's duties both to her client and to third parties when faced with a federal health insurance contract that has a right of recovery and/or subrogation against a personal injury settlement. The policy's right of subrogation creates an "interest" in the proceeds, under ER 1.15, such that the lawyer cannot counsel the client to sign a release that might extinguish the insurer's claim unless the attorney intends to honor the claim. Similarly, the lawyer cannot disburse the settlement proceeds without notifying the plan and delivering to the insurer any proceeds to which it is entitled. [ERs 1.7, 1.15]

This opinion discusses several ethical issues with respect to lawyers using the Internet to communicate including, for example, confidentiality concerns when sending email to a client, advertising considerations for websites and the applicability of Arizona's Rules of Professional Conduct to communications disseminated from or received in Arizona [ERs 1.6, 1.7, 5.5, 7.1, 7.2, 7.3, 7.4, 7.5]

97-08: Business Activities; Accountants; Sharing Office Space

A lawyer who is also an accountant may indicate both professional titles on his legal stationery, but: (1) the business must remain separate (financially and for advertising purposes although they may "reside" in the same physical location); (2) the non-legal business may not be used as a "feeder" for the law firm (i.e. clients of the non-legal business should not be solicited for legal work); (3) clients who are referred to the non-legal business must be advised of the lawyer's interest in the accounting firm and that the attorney-client privilege does not extend to the accounting work; (4) appropriate safeguards must be in place to assure against breaches of confidentiality and conflicts for the legal practice; and (5) the lawyer should not indicate that he is a lawyer in his accounting advertisements unless he complies with the Ethical Rules on advertising. [ERs 1.6, 1.7, 1.8, 5.4, 7.1, 7.5]

An attorney who works on a contract basis for more than one law firm will be considered an associate of each firm for conflicts and confidentiality purposes unless: (1) there is a written agreement that limits the scope of the contract attorney's work to a particular client for a particular project (specifying that the relationship will terminate at the end of the project or at a particular time or upon the occurrence of a particular event); and (2) the contract attorney will not have general access. [ERs 1.6, 1.7, 1.8, 1.9, 1.10]

A lawyer ethically cannot accept a fee from an investment adviser for referring clients of the lawyer to the adviser. Such a referral arrangement would present a conflict of interest for the lawyer, in violation of ER 1.7(b). [ER 1.6, 1.7, 1.8]

Insurance defense lawyers ethically cannot participate in an audit review program by an insurance carrier's outside auditor where the program requires: 1) disclosure of confidential information about the client/insured (without the client's informed consent); 2) restricts the lawyer's independent professional judgment by limiting the services the lawyer may perform; and 3) grants the auditor permission to review client files. [ER 1.6(a), 1.7(b), 1.8(f), 5.4(c)]

99-09: Conflicts of Interest; Business Transactions with Client; Business Activities; Financial Planning

A lawyer may offer securities and insurance services to his legal clients if he stringently complies with all of the requirements in ER 1.7(b) and 1.8(a) in assuring that: 1) the legal representation will not be adversely affected by the ancillary services; 2) the terms in the ancillary business transaction are “fair and reasonable” to the client; 3) the terms are fully disclosed in writing to the client; and 4) the client gives informed consent in writing. [ER 1.7(b), 1.8(a)]

99-12: Conflicts of Interest; Division of Fees with Nonlawyers; Independent Professional Judgment; Lawyer Referral Service

A lawyer employed by an architectural firm may not provide legal services to the firm's clients, where the firm pays the attorney a salary but charges the clients an hourly rate for the lawyer's services, because of possible conflicts of interest and impermissible fee-sharing with non-lawyers. [ER 1.7, 1.8(f), 5.4, 7.1]

It is unethical for an attorney representing a client in pending litigation to file a lawsuit against that client, while the representation is continuing, for the collection of attorney's fees and unpaid costs. [ERs 1.6(d), 1.7, 1.16(a)]

A lawyer should not enter into a criminal defense contract to provide legal services paid by a third party if the contract might induce the lawyer improperly to curtail services or to perform them in a way contrary to the client's interests because of insufficient funding and that requires authorizations from non-lawyer third parties. [ERs 1.7(b), 1.8(f), 5.4(c)]

An attorney does not owe a duty of confidentiality to individuals who unilaterally e-mail inquiries to the attorney when the e-mail is unsolicited. The sender does not have a reasonable expectation of confidentiality in such situations. Law firm websites, with attorney e-mail addresses, however, should include disclaimers regarding whether or not e-mail communications from prospective clients will be treated as confidential. [ERs 1.6, 1.7]

A lawyer may form a business entity for various individuals and be counsel only for the yet-to-be-formed entity, if appropriate disclosures and consents occur. Alternatively, a lawyer may represent all of the incorporators, collectively, with appropriate disclosures.

If the applicable statute of limitations has run, identifying a client as a non-party at fault in another client's litigation does not necessarily establish a conflict of interest under ER 1.7. However, if the statute of limitations has not run, naming a client as a non-party at fault does create a conflict under ER 1.7, because it identifies the client as a potential defendant to other parties, who may then amend the complaint to add the client as a party. Whether the conflict is waivable under ER 1.7(b) will depend on certain facts.

A claimant's attorney may not ethically enter into any settlement agreement that would require the attorney to indemnify or hold the Releasee harmless from any lien claims against the settlement proceeds.

Under revised Ethical Rule 1.10 a separate “Conflicts Unit” may not be employed to address imputed conflicts involving former clients even if screening is employed as defined under ER 1.0. Two current clients may give a written informed waiver of a conflict under certain circumstances in accordance with ER 1.7. If both clients do not give consent, however, the Public Defender’s office and the proposed Conflicts Unit would constitute one firm for purposes of ER 1.10, such that referral of a case to the Conflicts Unit would not resolve the ethical conflict.

Under ER 5.7, adopted in December 2003, a lawyer who operates a separate investment advisory business may refer non-clients to an investment advisory firm that pays a referral fee to the lawyer, so long as the lawyer takes reasonable steps to assure that the non-clients understand they are not receiving legal services and they do not have the protections of a lawyer-client relationship. A lawyer who provides such services to former clients must also comply with the confidentiality requirements and other obligations under ER 1.9, and should take particular care to assure that the former clients understand they do not have a lawyer-client relationship with respect to the investment transactions. A lawyer may not refer a current client to such a program, however, unless the lawyer meets the "heavy burden" of showing compliance with ER 1.7 and 1.8(a). Also, a lawyer who provides investment advisory services must satisfy ERs 7.1 through 7.3 and maintain separation between the law practice and the lawyer's investment advisory business so that they do not appear to be related.

To the extent previous Arizona ethics opinion 98-09 is inconsistent with ER 5.7 and the analysis in this opinion, the earlier opinion is no longer effective.

A dissenting opinion issued contemporaneously by the committee, recommends a per se ban against lawyers accepting money from third-party professionals in exchange for referring law clients to those third-party payors. However, like the majority, we agree that a lawyer can accept a fee from a third-party professional for referring non-clients to the third-party's firm, provided that the lawyer complies with Rule 5.7.

05-07: Non-client spouse; Indemnity; Conflict; Joint Representation

An attorney representing a client in settlement of a lawsuit may not give the client’s spouse legal advice about waiving any right in a release unless the client and spouse both agree to joint representation and waive the potential conflict. Absent joint representation, the attorney may not provide legal advice to the spouse, even if the release requires the spouse’s signature and the spouse’s rights are affected by the release. If the spouse is unaware of the lawsuit or the settlement and release, the lawyer must take care to avoid any implied false statement by the client to the spouse, as well as any failure by the client to disclose material facts to the spouse.

06-02: Conflict of Interest; Bankruptcy; Referral Fee

A lawyer cannot accept a referral fee from an automobile dealer in return for referring “credit challenged” clients who purchase vehicles to the dealer. [1] This form of arrangement violates the dictates of ERs 1.7 and 1.8.

Because it is a court cost or expense of litigation under ER 1.8(e)(1), a lawyer may advance, contingent on the successful outcome of a case, the cost of a security bond ordered posted by the court pursuant to its authority under Rule 67(d), Ariz.R.Civ.P. Similarly, if the client is indigent, a lawyer may pay for the cost of such a bond as permitted under ER 1.8(e)(2).

A lawyer may provide mortgage/refinancing services separate from the lawyer’s law firm so long as the proper disclosures are made, including that the lawyer is not providing legal services and the customers do not have the protections of the lawyer-client relationship. Referrals of clients must meet the “heavy burden” of compliance with ERs 1.7 and 1.8(a). Lawyers from separate law firms may participate as loan officers in the separate mortgage/refinancing company without imputed conflicts of interests for their law firms’ clients. However, these lawyers must not only make proper disclosures, but each lawyer also must determine whether the lawyer’s personal interests materially limit the lawyer’s professional judgment and whether any information known by the lawyer from these professional and business relationships creates any conflict of interest such that the lawyer may not proceed in any particular circumstance. Confidentiality requirements for clients and former clients also must be strictly followed.

The representation of multiple clients in a single litigation matter is generally permissible so long as the lawyer reasonably believes that he or she will be able to provide competent and diligent representation to each client, the representation does not involve the assertion of a claim by one client against another client, and each client gives informed consent, confirmed in writing. Ethical Rule (“ER”) 1.7(b). The requirement of informed consent arises only if, as an initial matter, the lawyer determines that the lawyer can, in fact, competently and diligently represent each client in the particular matter. Once that determination is made, the lawyer bears the burden of showing that there was adequate disclosure to each client and that each client gave an informed consent.

The disclosures required to obtain the client’s “informed consent” will depend on the facts and circumstances of the particular matter. The lawyer must explain the possible effects of the common representation on the lawyer’s obligations of loyalty, confidentiality and the attorney-client privilege. In addition to the confirming writing required by ER 1.7(b), informed consent usually will require that the lawyer explain the advantages and disadvantages of the common representation in sufficient detail so that each client can understand why separate counsel may be desirable. Finally, during the course of the matter, the lawyer must continue to evaluate whether conflicts have arisen that may require additional disclosures and consent or withdrawal from the representation.

09-01: Restrictions on Right to Practice; Departing Lawyer

A law firm may not employ associate lawyers using a contract that requires a departing associate to pay $3,500 to the law firm for each instance in which the departing associate continued to represent a law firm client. This requirement would violate the policy underlying ER 5.6 that puts the commercial interests of law firms secondary to the need to preserve client choice.

A lawyer holding property in which both the client and a third person have an “interest” must account for the property, pay undisputed sums to the proper party, and abide resolution of any disputes. Arizona Rules of Professional Conduct (“ERs”) 1.15(d), (e). ER 1.15(d) requires a lawyer with knowledge of claims against the client to protect those with an “interest” in funds in the lawyer’s control. An “interest” is a matured legal or equitable claim. The ethical rules do not require a claimant’s lawyer to search public records or other sources for medical liens or claims in order to acquire knowledge of an “interest.”

13-01: Internet Marketing Vouchers or Coupons

Whether an Internet marketing voucher or coupon sold by a lawyer for legal representation is consistent with the Arizona Rules of Professional Conduct will depend on the terms and conditions of the voucher or coupon sold as well as the other facts and circumstances. Absent specific terms and conditions, however, it is unlikely that an Arizona lawyer can ethically use Internet marketing voucher- or coupon-based legal services due to a panoply of ethical concerns arising under Ethical Rules (ERs) 1.1, 1.2, 1.6, 1.7, 1.9, 1.15, 1.16, 1.18, 5.4, 7.1, and 7.2.

The conflict-of-interest rules prohibit a defense attorney from advising a criminal defendant to waive the defendant’s right to raise that attorney’s ineffective assistance of counsel. The ethical rules also prohibit a prosecutor from insisting that a defendant waive the right to raise ineffective assistance of counsel and prosecutorial misconduct claims. Opinion 95-08 is accordingly withdrawn.